United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

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Regarded as having a physical or mental impairment includes any limitation which such a person experiences as a result of a condition which is not caused by the condition but by the actions of other persons predicated on a view that such condition constitutes an impairment. OFCCP v. E.E. Black, Ltd., 77-OFCCP- 7R, Assistant Secretary for Employment Standards Dec. and Order, February 26, 1979, slip op. at 15, aff'd, E.E. Black v. Marshall, 497 F. Supp. 1088 (D. Hi. 1980), E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).

Examples of what constitutes regarded as having a physical or mental impairment. Id. at 14-15.

The definition of regarded as having a physical or mental impairment includes persons who have no physical or mental impairment but are believed by the contractor to be impaired. Id.

Regarded as having a physical or mental impairment includes in its definition persons whose impairment has a less than substantial effect on a major life activity or any substantial limitation which is the result of the attitudes of a contractor toward the impairment. Id. at 14.

To determine whether a person is handicapped under the statutory definition of being regarded as having such impairment depends upon perceptions of them at the time of the employment discrimination rather than the discriminatee's actual physical conditions and capacities. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec., November 9, 1982, slip op. at 36-37; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

OFCCP has the burden of proving that an individual is regarded as handicapped. OFCCP v. Commonwealth Aluminum, 82-OFC-6, ALJ Rec. Dec., June 26, 1986, slip op. at 15,rev'd on other grounds, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Included within the broad definition of "handicapped individual" in Section 503 and the regulations are those persons whom the employer perceives to be handicapped even though they actually have no physical or mental impairment. OFCCP v. Central Power & Light Co., 82-OFC-5, ALJ Rec. Dec., March 30, 1987, slip op. at 4; Consent Decree, December 10, 1991.

The applicants were rejected because of their physical conditions, which the employer perceived to weaken, diminish and restrict their physical work activity, and were regarded as having physical impairments which substantially limited a major life activity and are therefore handicapped individuals as defined by Section 503(c). Id. at 5.

Seven vocationally qualified job applicants were qualified handicapped individuals, who were denied employment because the defendant perceived them as having handicaps based on back x-ray results, whether or not the impairment actually existed. OFCCP v. Texas Utilities Generating Company, 85-OFC-13, ALJ Rec. Dec. and Order, March 2, 1988, slip op. at 9, remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, August 25, 1994; Consent Decree, April 15, 1996.

The employer's practice of excluding otherwise qualified job applicants purely on the basis of x-rays, with no consideration of their actual medical history or ability to perform, violated Section 503. Id.; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, August 25, 1994; Consent Decree, April 15, 1996.

The complainant was a handicapped individual because the evidence showed that her congenital lower back deformity and her partial laminectomy were perceived as physical limitations, actually were physical limitations, and substantially limited her in securing employment. OFCCP v. Texas Industries Inc., 80-OFCCP-28, Assistant Secretary for Employment Standards, June 7, 1988, slip op. at 8, rev'g, ALJ Rec. Dec., June 10, 1981, remanded on other grounds, Assistant Secretary for Employment Standards Order of Remand and Stay of Enforcement, September 27, 1990, ALJ Decision and Order on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Though complainant had never experienced adverse effects of any kind as a result of his mild hypertension, he was regarded as handicapped by the defendant and was therefore a handicapped individual within the meaning of 503. OFCCP v. WMATA, 84-OFC-8, ALJ Rec. Dec., June 10, 1988, slip op. at 6, aff'd, Acting Assistant Secretary for Employment Standards Final Dec. and Remand Order, March 30, 1989, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

The defendant's contention that the complainant's were not "regarded" as "handicapped" since their back conditions affected their employability only in " particular job" is without merit. OFCCP v. Yellow Freight System, Inc., 79-OFCCP-7, ALJ Rec. Dec. on Remand, August 26, 1988, slip op. at 48, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

All complainants were found fully physically qualified to drive on the basis of physical examination but were rejected for hire only after x-rays disclosed the presence of certain back conditions. Whether the complainants' back conditions were actually handicapping or were only so regarded, the complainants were be definition "handicapped" individuals. Id. at 49.

The contractor did not regard the complainant as unsuited for only the particular requirements of its particular carpenter's job. This was no isolated mismatch of employer and employee stemming from the unique or unusual demands of one specific position. As defendant viewed the complainant, he could not perform any carpenter's job, or indeed any heavy labor job, because his blood pressure made him an unacceptable risk. OFCCP v. WMATA, 84-OFC-8, Acting Assistant Secretary for Employment Standards Final Dec. and Remand Order, March 30, 1989, slip op. at 21, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

The fact that the complainant has been able to obtain other jobs in the construction industry does not take him out of the definition of a handicapped individual. The focus under clause (iii) of the definition is how the contractor viewed the complainant, not whether other employers applied the same, possibly irrational, standard. Otherwise, an employer who persists in utilizing outmoded medical and scientific standards, after the rest of the community had become enlightened, would be free to discriminate. Id. at 22.

An individual is covered under the Rehabilitation Act if he is viewed by an employer as disqualified for the kind of job under consideration, whether or not it affects (substantially limits) his ability to obtain other similar jobs with other employers. Id.

The defendant railway company perceived the complainant's moderate obesity and hypertension as conditions precluding her from safely performing the job of a shop laborer. Therefore, the complainant, at a minimum, had a perceived impairment affecting a major life activity, i.e., employment. OFCCP v. Norfolk and Western Railway Co., 88-OFC-4, ALJ Rec. Dec. and Order, June 28, 1989, slip op. at 18, stipulated dismissal, November 13, 1991.

If an employer perceives an impairment the complainant does not have, then OFCCP does not have to demonstrate that the impairment existed in fact. It is sufficient that the perceived impairment affected her employability. Id.

The complainant, who had a knee condition, was regarded as handicapped by the contractor because it viewed him as physically unqualified for any position, unless he was able to obtain a medical release with no restrictions on his regular duties. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, Assistant Secretary for Employment Standards Dec. and Order of Remand, December 5, 1989, slip op. at 6-7, ALJ Rec. Dec. on Remand, May 22, 1992, affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994,; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

A contractor regards complainant as handicapped by finding the complainant's impairment to foreclose generally the type of employment involved. OFCCP v. Rowan Companies, Inc., 89-OFC-41, ALJ Rec. Dec. and Order, April 3, 1991, slip op. at 6, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

The fact that other employers may have been willing to hire complainants, i.e., did not regard them as handicapped, has no bearing on whether contractor regarded complainants as handicapped. Ibid., remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

In determining whether contractor regarded complainants has handicapped, the focus is on the type of jobs from which complainants were foreclosed, not the number or quantity of jobs foreclosed. Ibid., remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Because contractor considered complainants foreclosed from performing a type, genre or class of jobs -- not just contractor's roustabout or floorhand positions, but any roustabout or floorhand position -- contractor regarded complainants as handicapped. Id. at 6-7, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Complainant was a handicapped individual under Section 503 and the regulations because contractor perceived complainant as suffering from epileptic seizures, an impairment which substantially limits a major life activity. OFCCP v. Exide Corporation, 84-OFC-11, Acting Assistant Secretary for Employment Standards Dec. and Final Order, April 30, 1991, slip op. at 7, vacated sub. nom., Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip op. at 16.

OFCCP has burden of showing that not only does complainant's handicap prevent him from performing the singular demands of a particular job, but that it also forecloses generally the type of employment involved, assuming that all employers offering the job would use the same requirement or screening process. OFCCP v. Norfolk and Western Railway Co., 90-OFC-1, ALJ Rec. Dec. and Order, June 26, 1991, slip op. at 30; Consent Decree, November 22, 1991.

OFCCP met its burden of proving that complainant's monocular condition substantially limits his ability to find work as a brakeman/conductor or similar employment where contractor rejected complainant because of his monocular condition and it must be assumed that all employers offering the job would reject him on that basis. Ibid.

Subsection (iii) of the definition of individual with handicaps includes individuals who are regarded as having an impairment even though there may be no actual incapacity at all. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, ALJ Rec. Dec. and Order, May 22, 1992, slip op. at 12, affirmed on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Subsection (iii) of the definition of individual with handicaps, which includes individuals who are regarded as having impairments, was enacted to eliminate discrimination stemming not only from simple prejudices, but also from archaic attitudes and facts. Ibid. ; affirmed on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

The inquiry of whether an individual is handicapped under Section 503 is an individual factual issue focusing on the particular circumstances of the person and his employment circumstances. Ibid.; affirmed on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Although employee's knee impairment affected his ability to work in jobs requiring stooping and bending, which would not necessarily substantially limit his employment in general, and although there was no proof that he was substantially limited in his overall geographic employment opportunities, employee meets the definition of handicapped individual because contractor regarded or treated employee as so impaired, precluded him from all employment in their operation and, thus, inhibited his ability to secure, retain, or advance in employment. Id. at 13-14; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 6-7; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Complainant who had a non-disabling condition known as occipital arteriovenous malformation in the left side of his brain which, according to the record, "probably did not cause" his inaccurate perception that he was an epileptic, does not fall within subsection (i) or (ii) of the definition of handicapped individual. Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip. op. at 11.

Regardless of what an employee "believes" or what he tells a company concerning his "perceived condition," there must be some evidence that the company took concrete action directly related to the employee's claimed condition, and that these actions have not been taken with respect to non-handicapped individuals, before a finding can be made that the contractor actually "regarded" the individual as "handicapped." Id. at 12.

Contractor's request that employee who claimed to be epileptic produce a release from his doctor stating that he could work on dangerous equipment and under dangerous conditions does not evidence that the contractor regarded him as handicapped but, instead, was consistent with company policy of making sure that return to work excuses for all employees are "adequate and complete" and to ensure that the complainant's physician had sufficient information to make a recommendation about his ability to return to work. Id. at 16.

"Individual with handicaps" includes any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) has a record of such impairment; or (iii) is regarded as having such an impairment. OFCCP v. Exxon Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15, 1993, slip op. at 24; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 4.

The contractor "regarded" the complainant (a recovering alcoholic) as handicapped because it transferred him to another job pursuant to its substance abuse policy under which all recovering alcoholics are presumed to be unable to perform safety sensitive jobs. Id. at 26; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 5-6.

The contractor "regarded" the complainant (a recovering alcoholic) as handicapped because it did not preclude him from only a handful of jobs but perceived him as incapable of performing 10% of the jobs in the company. Id. at 27; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 5-6.

[I]t is clear that Commonwealth regarded complainant as handicapped because he was foreclosed generally from positions involving manual labor from the time of his initial application until he was hired, [one year later]. OFCCP v. Commonwealth Aluminum Corp., 82-OFC-6, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 19; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Where an employer regards an individual as being foreclosed generally from heavy manual labor positions that individual is considered handicapped. Id. at 21; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The Assistant Secretary held that, though complainant had a correctable hernia at the time of his application, he was handicapped because Commonwealth regarded him as being foreclosed generally from employment with them. Id. at 22; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The Administrative Law Judge held that Delta did not regard myopic pilots as having an impairment, but rather unable to meet the requirements of a single job. To meet the definition, an employer must find that the individual's perceived impairment generally forecloses him or her from performing the type of employment involved. OFCCP v. Delta Airlines, Inc., 94-OFC-8, ALJ Rec. Dec. and Order on Cross-Motions for Summary Judgment, March 20, 1996, at 11; exceptions pending, Administrative Review Board.

Cissell regarded or treated the complainant as . . . impaired by precluding him from all employment in their operation. OFCCP v. Cissell Manufacturing Co., 87-OFC-26,Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 6-7; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

The definition of "regarded as" applies to those who are regarded as impaired and who, as a result, are substantially limited in a major life activity due to society's accumulated myths and fears about disability and disease. OFCCP v. American Telephone and Telegraph Company (AT&T), 92-OFC-5, ALJ Order Denying Defendant's Motion for Summary Judgment and Granting in part Defendant's Motion in Limine, April 23, 1995, at 5.

The proper test for whether a perceived impairment substantially limits a major life activity is whether the impairment, as perceived, would affect the individual's ability to find work across the spectrum of same or similar jobs; citing Partlow v. Runyon, 826 F.Supp. 40 (D. N.H. 1993) and E.E. Black Ltd. v. Marshall, 497 F.Supp. 1088 (D. Haw. 1980). Id. at 5.

Although Complainant may have obtained employment after being placed on disability status, this does not foreclose a finding that he was perceived as handicapped. The absence of bias by some employers does not mean that other employers would not refuse to hire him based on his perceived handicap. Id. at 6.

Evidence of United's policy of not hiring pilots who have undergone radial keratotomy surgery and the application of the policy to the complainant creates a genuine issue of material fact as to whether United regarded the complainant as impaired. OFCCP v. United Airlines, 94-OFC-1, July 20, 1995, ALJ Order at 2-3.

An employee may fall under subpart (iii) of the definition [of individual with a disability], if he has an impairment that does not substantially limit a major life activity, but the impairment is regarded as being substantially limiting. The ARB further noted that individuals also come into this category if they have an impairment which is substantially limiting only because of attitudes of others toward the impairment. For example, a job applicant's facial scar may be substantially limiting because the prospective employer believes it will dissuade customers. Finally, an individual with no impairment may be regarded as having one that is substantially limiting. This circumstance would encompass discrimination based on the mistaken belief that an individual is physically or mentally impaired or on genetic information relating to illness, disease or disorders. OFCCP v. Exxon Corporation d/b/a/ Exxon Company, 92-OFC-4, Final Decision and Order, Administrative Review Board, October 28, 1996, at 5 and n.7.

By including the "regarded as" criterion, "Congress acknowledged that society's accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment." School Board of Nassau County v. Arline, 480 U.S. 273, 283 (1987). Id. at 5.

Congress clearly intended coverage of individuals treated for alcoholism. Consequently, the ARB held that since Exxon perceives the possibility that complainant's alcoholism could affect his work performance if he were to suffer a relapse, he is regarded as having an impairment that affects employment in these circumstances. Id. at 5 and n.8.